Florida

January 19, 2018

The Daily Mail is one of those guilty pleasures you might read in the middle of the day to catch up on the latest Meghan Markle news (or not), but I’ll say one thing for it: Daily Mail headlines don’t mince words. Here’s one from a recent article: “Florida woman, 34, died because a faulty air bag ruptured and fired shrapnel into her head during a crash she should have survived, report reveals.”

The article tells the terrible story of Nichol Lynn Barker Pahlck’s death, who “was struck by metal pieces that burst through the Takata airbag, causing a 6-inch by 3-inch gaping wound to her left temple.” The blog Car Complaints writes:

The Florida Highway Patrol (FHP) has confirmed that Nichol Lynn Barker Pahlck, 34, is at least the 21st person killed by a Takata airbag.

In what police describe as a minor crash, the mother of three was driving a 2002 Honda Accord in Holiday last July when a 1999 Pontiac Firebird turned in front of the Accord, causing the front of the Honda to hit the side of the Firebird.

Florida authorities say the crash was completely survivable and it was surprising the amount of damage caused to Pahlck.

According to Florida investigators, nothing in the Accord other than the Takata airbag would have caused the facial injuries and death of Pahlck in a "crash that should not have been fatal."

I wish this were the only bad airbag news but there’s more. This week, the National Highway Traffic Safety Administration announced even more Takata air bag recalls, including models from 14 different automakers: Ford, Nissan, Mercedes-Benz, Ferrari, Daimler Vans, Toyota, Tesla, BMW, Fiat Chrysler, Mazda, Subaru, Jaguar-Land Rover, McLaren and Volkswagen. Toyota, Ford and Honda.

Even by the standards of the Takata airbag scandal, or the criminal case and recall currently affecting 60 million cars in the United States alone, the warning that some Ford customers received last week was particularly dire.

Nearly 3,000 Ford Rangers on the road pose “an immediate risk to safety,” the National Highway Traffic Safety Administration announced on January 11.

Ford added on its own website that that owners of “specific 2006 Ford Rangers” shouldn’t even drive to the dealership due to potentially explosive airbags.

“Parts are available now, and dealers are prepared to get vehicles directly from customers, make permanent repairs that will resolve the safety risk and provide a free interim loaner vehicle, if necessary,” Ford writes online.

It’s a comforting message, but one that may not be completely true. Some dealerships are saying that they don’t yet have the parts to replace airbags in the 2006 Ford Ranger, let alone a loaner vehicle for affected customers to drive while they wait.…

In a follow-up statement to ConsumerAffairs, Ford disputes the message that we received from dealerships.

However, it did get the attention of a couple U.S. Senators, who “asked the U.S. Transportation Department on Thursday to explain why a ‘do not drive’ directive issued last week by Ford Motor Co is limited to about 2,900 older pickup trucks and if other vehicles are potentially at risk from defective airbag inflators.”

Ford said both deaths in 2006 Ranger pickups occurred with inflators built on the same day. In a recall notice filed with NHTSA, Ford said data from the two incidents and an anomalous test all occurred with inflators from the same propellant production lot. The recall applies to Ford Rangers with inflators built on two days in September 2005, the company said.

In yet more bizarre airbag news, “General Motors has received a patent for an airbag on the outside of vehicles designed to ‘provide protection to a pedestrian,’ the latest iteration in an industry effort to address a growing problem that accounts for roughly one in seven U.S. traffic deaths."

“The pedestrian protection airbag could become an important engineering solution in the future,” said Tom Wilkerson, safety communications spokesman for GM.

It is not the initial impact from a vehicle that is most likely to kill pedestrians, but secondary impact when pedestrians pass over the hood and hit their heads on the heavy frame piece holding the windshield, said Maeva Ribas, manager of design analysis at The Carlab, an automotive product planning consultant.

Interestingly, GM also just “petitioned the federal government for approval to adjust 16 motor vehicle standards so it can test cars that have no steering wheel, pedals and other driver controls."

September 19, 2017

Journalists examining the eight nursing home deaths at Florida’s Rehabilitation Center at Hollywood Hills during Hurricane Irma have begun exploring who’s at fault for this entirely preventable tragedy. But actually, we may never understand the full story. As reckless as the owners and operators may have been for the facility’s failed cooling system that caused sweltering unlivable temperatures, it is hard to overestimate the role of unremorseful politicians, whose policies over the last 20 years accelerated the likelihood of this happening.

As Miami Herald journalists Carol Marbin Miller and Mary Ellen Klass recently reminded us, in 2006 Florida almost passed legislation that would have required all Florida nursing homes to have generators “capable of cooling and running their facilities.” The nursing home industry killed the bills. In a recent column about the state’s repeated failure to protect these most vulnerable patients, Orlando Sentinel columnist Scott Maxwell tore into state political leaders, including Governor Rick Scott. Scott – the ousted head of healthcare operator Columbia/HCA, who “was at the center of one of the largest cases of Medicare fraud in U.S. history” and was then elected Florida’s governor in 2010 – took immediate action to shield and immunize nursing home companies for harm they cause residents. Just 34 days into his term, Scott “quickly ousted the state’s lead elder-affairs watchdog,” who had served under both prior governors and had exposed grotesque patterns of abuse and neglect at these facilities. In addition, “Legislators began rolling back safety protections, reducing, for instance, the number of hours of direct care nursing homes had to provide to residents.” This was all “done in the name of ‘deregulation’ — a word that sounds swell until you realize the end result can be a World War II veteran left wallowing in his own filth.”

October 27, 2016

First, the undeniable YES! Yes-terday, a Florida appeals court “ruled that limits on ‘non-economic’ damages in medical-malpractice lawsuits are unconstitutional.” Woo hoo! This comes as the Florida Supreme Court considers the issue in another case – the same court that ruled in 2014 “that the caps were unconstitutional in a wrongful-death case involving a woman who died after giving birth in a Northwest Florida hospital.” See our coverage here. (One step at a time, I guess.)

Now, the NO! A Washington Post “Wonkblog” called, “In one corner of the law, minorities and women are often valued less,” presents a very a troubling aspect of our civil justice system when a case goes to trial or settles:

[W]hite and male [injury] victims often receive larger awards than people of color and women in similar cases, according to more than two dozen lawyers and forensic economists, the experts who make the calculations. These differences largely derive from projections of how much more money individuals would have earned over their lifetimes had they not been injured – projections that take into account average earnings and employment levels by race and gender.

In one case, when a 6-year-old girl and a male fetus were killed in the same car crash, the settlement for the fetus was calculated to be up to 84 percent higher than the girl’s, according to court records.

Yet valuing the destruction of someone’s life based on what they might have earned in the marketplace can result in additional types of race and gender discrimination. Because “lost earnings” make up such a significant element of compensation for severe injuries, low wage earners, children, seniors, and stay-at-home parents – often, moms - will frequently receive a larger proportion of their compensation in the form of “non-economic damages.” That is compensation for injuries like blindness, trauma, mutilation, physical impairment or a damaged reproductive system. More than half of state legislatures have severely capped non-economic damages, which experts say results in harsh discrimination. (See more here.)

Finally, the MAYBE? In 2015, Congress did something positive for injury victims (for a change.) It increased by 45 percent the federal law’s cap on damages for mass casualty train accidents – i.e., the limit went from $200 million to $295 million, with an inflationary adjustment every five years. And it made the increase retroactive to cover compensation to victims of last year’s Amtrak derailment and crash in Philadelphia, which killed 8 people and injured over 200. Many people and some Senators wanted a larger increase - but at least it was something.

Now, Amtrak just agreed to settle the Philly case for $265 – less than they had to but clearly more than the original cap. The money must now be distributed to victims and two special masters will review victims' claims:

Under the 25-page agreement, victims must decide by Nov. 21 whether to participate in the settlement. Two court masters will review submissions from the participants by Dec. 20. Amtrak and its insurers will give $265 million to a court-supervised trust by Feb. 28, with offsets for previous payments of up to $10,000 per passenger for funerals, transportation and lodging expenses. Participants will be notified by June 30 of the share they will receive.

September 29, 2015

PopTort fans may recall our July 2015 post which discussed the horror show experienced by most prison inmates needing health care (a problem which clearly continues) and the extreme hurdles they face when suing. There are constitutional hurdles, procedural hurdles, damages caps, and many other restrictions. The result is a severe lack of accountability for the entire prison health care system. (Learn more in the Center for Justice & Democracy’s FAQ, “Civil Justice and Prison Health Care.”)

But we’re here to report that as difficult as these cases can be to bring, there are good attorneys out there who continue to try. Earlier this month, the Florida Justice Institute filed a class action lawsuit against the “Florida Department of Corrections and medical contractor Corizon, alleging Corizon refused to provide medically necessary surgical procedures in an effort to keep costs down.” Writes the Miami Herald:

The lawsuit seeks a court order requiring Corizon to provide surgery to inmates who need it, and requests punitive damages from the Brentwood, Tennessee -based contractor. Corizon, which operates in 27 states, was awarded a five-year contract with the Florida Department of Corrections in 2013, despite already facing numerous lawsuits across the country for allegedly deficient care.

And just a couple weeks ago, a settlement was finally reached in a class action filed three years ago by the Legal Aid Justice Center, Wiley Rein LLP of Washington, D.C., and the Washington Lawyers Committee for Civil Rights and Urban Affairs on behalf of 1,200 inmates at Virginia’s Fluvanna Correctional Center for Women. The case was brought against the Virginia Department of Corrections and a private health care provider for inadequate medical care.

The settlement with the the inmates, who asked for no monetary compensation, but merely better health care, requires that the Virginia Department of Corrections "overhaul its medical care at [the facility], including changing operating procedures to better accommodate women with disabilities, timely access to medications and medical supplies, and follow-up treatment in accordance with medical specialist recommendations."

In both the Florida and Virginia cases, the health care quality was so appalling that it rose to the level of a constitutional violation. As explained in CJ&D’s FAQ, “The U.S. Supreme Court has long recognized that prisoners have a constitutional right to adequate health care through the Eighth Amendment’s ban on ‘cruel and unusual’ punishment.” When state facilities are at fault, both state officials and private health care contractors can be sued under federal civil rights laws.

Of course, health care quality is not the only problem in prisons. For many years, attorneys have used class actions to try to improve other types of inhuman prison conditions. Just last month, the Center for Constitutional Rights reached a settlement on behalf of prisoners at the Pelican Bay Correctional Facility in Crescent City, California. Inmates had banded together to challenge the state’s policies concerning the widespread use of solitary confinement.

The result? California has agreed to overhaul the use of solitary confinement. You can read more about it here.

January 21, 2015

Earlier this month, former Arkansas circuit judge Michael Maggio pleaded guilty for accepting a bribe “in the form of a campaign contribution” when, days after taking money from nursing-home owner Michael Morton, he “reduced a jury-awarded $5.2 million judgment against one of Morton's nursing homes to $1 million.” He now faces up to 10 years in prison and a $250,000 fine.

When the relentless Blue Hog Report reported that Maggio slashed the judgment that Morton would have to pay the family by $4.2 million on the same day he got a bundle of PAC checks originating from Morton, and after the FBI found incriminating texts and emails suggesting a quid pro quo, the judge had to give up his alibi that it was all coincidence.

That, of course, is not the end of the story even when it comes to possible judicial bribes in Arkansas. For example, “From 2010 to 2014 Morton gave $145,000 to six Supreme Court candidates, five of whom now sit on the court.” Observes the AK Blog,

Judge Mike Maggio gave Faulkner County, the judiciary and the nursing home industry a bad name by taking bribes to knock 81 percent off a jury award to the family of a woman who died of neglect in a Conway nursing home, but let’s be fair. Maggio did not start this stinking business of buying public policy and judicial decisions. Sadly, he won’t end it either.

And neither might the U.S. Supreme Court. If you were paying attention to arguments yesterday, you may have heard about this one: Williams-Yulee v. the Florida Bar, “a challenge to a Florida rule barring judicial candidates from personally requesting campaign contributions.” WritesSlate in a story called, "Judicial Indignity; The Supreme Court ponders judges’ freedom to panhandle,"

Lanell Williams-Yulee, a former candidate for county court judge in Hillsborough County, launched her campaign with a personalized mass-mail fundraising letter that asked for “an early contribution” to help her “raise the initial funds.” She promptly got charged with professional misconduct by the Florida Bar. The Florida Supreme Court upheld Williams-Yulee’s sanction. Now she’s appealing it to the Supreme Court, under the theory that the First Amendment protects her right to ask voters for campaign cash.…

Everybody knows Williams-Yulee will probably win this case, and the five conservatives will claim another victory in their crusade against campaign finance regulations. But as the transcripts show, there is still plenty of drama: If the court’s four liberals are already resigned to their sure-to-be scathing dissent, they aren’t going down without a fight.

At least there’s that. It also means that we'll have more stories like this one to look forward to:

The parent company of Philip Morris USA contributed a total of $500,000 on Oct. 6 and 8 to a Republican Party group, a few weeks after the Illinois Supreme Court agreed to hear the tobacco company's appeal of a $10.1 billion verdict. About two weeks later, the Republican State Leadership Committee put $950,000 into independent campaign ads supporting the retention of Lloyd Karmeier, a Republican Illinois Supreme Court justice.

Previously, the only known contributions from the parent company, Altria Group, to the RSLC were made in 2013, totaling about $225,000.

After winning his 2004 election, Karmeier' “cast the crucial fourth deciding vote to overturn a $1.05 billion verdict against State Farm Insurance and the $10.1 billion verdict against Philip Morris. The tobacco verdict was reinstated by an Illinois appellate court last year after new evidence came to light. The Illinois Supreme Court has taken up the case again.

Critics of judicial elections as well as plaintiff's lawyers in both cases have alleged that both firms contributed heavily and played big roles in electing Karmeier to the bench. Lawyers for the plaintiffs in the State Farm case are pursuing a separate case in federal court alleging that State Farm's involvement in his campaign amounted to a “racketeering enterprise” that conspired to funnel more than $4 million to elect Karmeier in 2004.…

While State Farm executives directly contributed minor amounts to the Karmeier campaign or the Illinois Civil Justice League, a tort reform group that was Karmeier's second-largest contributor, the allegation in the federal case is that the insurer poured millions into the U.S. Chamber of Commerce and other business groups that in turn contributed millions to the Karmeier campaign or ICJL's political action committee, Justpac.

However, a federal magistrate in Springfield ruled last month that the plaintiffs in that federal case “are not able to connect the dots on the money trail from State Farm to the Karmeier campaign,” denying a motion to waive the attorney-client privilege and force State Farm to disclose communications with its attorneys.

Similarly, there's no way to directly link the $500,0000 Altria contributed to RSLC's pro-Karmeier's ads, except for the timing. In the month after spending $950,000 on the pro-Karmeier ads, RSLC spent more than $3 million on other races around the country.

October 07, 2014

The highly-partisan industry lobby group, U.S. Chamber of Commerce, has been acting against the interests of its small business and local Chamber of Commerce members for years. Selling out the small businesses it should be representing? Check. Public attacks on and alienation from the very communities it should be promoting? Check.

If you are a business or a local Chamber in the Gulf region, the U.S. Chamber of Commerce has (remarkably) been at war with you for years. Let’s begin with the fact that for several years following Hurricanes Katrina and Rita, the U.S. Chamber inexplicably targeted for criticism every state in the hurricane-ravaged Gulf Coast region, suggesting that these states are bad for businesses.

But there is more. Yesterday, several local Gulf area chambers filed an amicus brief in the U.S. Supreme Court, which “blasted the national chamber for ignoring thousands of its members to support one large one,” i.e. BP.

The local chambers are: the Mobile Area Chamber of Commerce, the New Orleans Chamber of Commerce, the Greater Pensacola Chamber of Commerce, the Ascension Chamber of Commerce, the Charlotte County Chamber of Commerce, the St. Bernard Parish Chamber of Commerce, the River Region Chamber of Commerce and the Chamber of Commerce of Cape Coral. They represent “over 7,000 businesses, large and small, throughout the affected region of the Gulf of Mexico” and all are affiliates of U.S. Chamber of Commerce. They are angry and with good reason.

[w]ere negatively impacted to one extent or another by the events of April 20, 2010 and the subsequent economic and environmental disaster caused by [BP]’s gross negligence. These Affiliates and their members wish to inform the Court of their disagreement with, and objection to, the amicus brief filed by The [U.S.] Chamber in support of [BP], as The [U.S.] Chamber does not speak for these Affiliates and their members in this instance.…

The [U.S.] Chamber purports to speak for “more than three million U.S. businesses and organizations of every size, in every industry, and from every region of the country” (Chamber Br. at 2), yet it fails to disclose that hundreds, and potentially thousands, of Affiliates of The [U.S.] Chamber and business members of those Affiliates have filed claims for business economic losses in reliance on the Settlement Agreement – a Contract – and the very compensation system [BP] designed, lobbied for District Court approval of, attested to the adequacy and fairness of under oath, and initially defended before the Fifth Circuit Court of Appeals.…

Affiliates feel compelled to inform the Court of the misstatements made by The [U.S.] Chamber in its amicus brief.…

Unfortunately, with this issue of utmost importance to the many small business members that were deleteriously affected by the [BP]’s gross negligence, the opinions of these members were not solicited, and when expressed were not respected. The [U.S.] Chamber obviously did not and does not serve as the “voice” of these members, as it misstates in its amicus brief.…

The Chamber serves the express interests of a foreign corporation at the expense of a very large number of its Affiliates and individual business members.

July 08, 2014

A couple months ago, we received a heartbreaking note from a Wisconsin patient who was a clear victim of breast reconstruction malpractice at the University of Wisconsin hospital, but has been blocked from suing because of the state’s severe cap on malpractice compensation. Then I wondered, “have I been asleep for the last decade? Didn’t Wisconsin produce in 2005 one of the best state Supreme Court decisions ever striking down that state’s $350,000 non-economic damage cap?"

Caps limit the claims of those who can least afford it; that is, the claims of those who have suffered the greatest injuries.

Because an injured patient shares the cap with family members, the cap has a disparate effect on patients with families.

[W]hen the legislature shifts the economic burden of medical malpractice from insurance companies and negligent health care providers to a small group of vulnerable, injured patients, the legislative action does not appear rational. Limiting a patient's recovery on the basis of youth or how many family members he or she has does not appear to be germane to any objective of the law.

It is a major contradiction to legislate for quality health care on one hand, while on the other hand, in the same statute, to reward negligent health care providers.…

Based on the available evidence from nearly 10 years of experience with caps on noneconomic damages in medical malpractice cases in Wisconsin and other states, it is not reasonable to conclude that the $350,000 cap has its intended effect of reducing medical malpractice insurance premiums.

The available evidence indicates that health care providers do not decide to practice in a particular state based on the state's cap on noneconomic damages.

I may not have slept through the last decade but I guess my snoozing through meetings and baseball games (like this guy) was enough to have missed all the damage Wisconsin’s medical and insurance lobbies have caused patients since that great decision. Luckily, the Milwaukee Journal Sentinel recently did me a solid and explained some of the problems:

A $350,000 cap was enacted in 1995, which with inflation adjustments rose to $445,775 before it was struck down by the state Supreme Court in 2005 as being arbitrary and violating the equal protection provision of the state constitution.

State lawmakers led by then-Rep. Curt Gielow (R-Mequon), a former hospital administrator, then approved a $450,000 cap that was vetoed by then-Gov. Jim Doyle. The Democratic governor ultimately approved the $750,000 cap in 2006.

The state also caps noneconomic damages in any wrongful death case at $500,000, and it bans punitive damages in medical malpractice cases.

The cap on malpractice damages is even lower if the doctor is employed by the state, a category that includes the more than 1,350 who practice at Madison's University of Wisconsin Hospital and Clinics or associated facilities. Because the UW doctors are state employees — all state employees are covered by the cap — the ceiling on damage awards of any type is $250,000 per defendant, a cap that applies even if a doctor's negligence results in a lifetime injury that will require millions of dollars of future treatment. …

"This is a great place to be a physician," said Farnsworth, the Madison lawyer, who is challenging the $250,000 cap in appellate court. "They have de facto immunity."

So what about the patients who are unconstitutionally victimized by caps in Wisconsin? Oh, they’re still out there.

The paper is reporting on a $25.3 million jury award for a 53-year-old mother of four who “lost all four of her limbs as the result of medical malpractice.” The jury believed she deserved $15 million for pain and suffering and $1.5 million for her husband's loss of companionship - damages that are subject to the state’s $750,000 cap. Those responsible for causing her horrendous injuries are now going to ask that the cap be applied.

"This is a great case to challenge the cap — there is a significant physical loss and a substantial damage award," said Paul Scoptur, a Milwaukee plaintiffs' attorney and jury consultant who was not involved in the case. …

"One way or the other, this will likely get to the (Wisconsin) Supreme Court," said Daniel Rottier, the attorney for Mayo and her husband, Antonio Mayo.

And this time, the Court will have the Florida Supreme Court’s findings for back-up. This year, Florida's highest Court struck down that state's wrongful death cap, finding is unconstitutional. The Court found no support for a legislative scheme that imposes such a severe burden “upon the shoulders of the persons and families who have been most severely injured and died as a result of medical negligence,” and which leads to huge insurance industry profits. Any judge honestly looking at the facts couldn’t possibly find otherwise.

March 14, 2014

In yesterday’s 5-2 decision striking down Florida’s cap on non-economic damages in wrongful death cases, the Supreme Court of Florida criticized in withering detail the arguments used by medical malpractice insurance lobbyists and organized medicine to push for caps and other “tort reforms.”

For all the physicians out there, please know that according to the Court, you have been lied to most of all.

Since the industry uses these same arguments to push for laws that limit compensation to sick and injured patients in every state – as well as in Congress - we thought we would take some time to list some highlights from this brutally honest Florida Supreme Court decision. So here goes:

“[T]he statutory cap on wrongful death noneconomic damages does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.”

“[I]t has never been demonstrated that there was a proper predicate for imposing the burden of supporting the Florida legislative scheme upon the shoulders of the persons and families who have been most severely injured and died as a result of medical negligence. Health care policy that relies upon discrimination against Florida families is not rational or reasonable when it [caps damages]…”

“[T]he Legislature’s determination that ‘the increase in medical malpractice liability insurance rates is forcing physicians to practice medicine without professional liability insurance, to leave Florida, to not perform high risk procedures, or to retire early from the practice of medicine’ is unsupported.”

“[T]he alleged interest of health care being unavailable is completely undermined by authoritative government reports.… Those government reports have indicated that the numbers of physicians in both metropolitan and non-metropolitan areas have increased.”

“Moreover, for those doctors who are leaving or have left Florida, there was no concrete evidence to demonstrate that high malpractice premiums were the cause of that departure,” a fact borne out by sworn testimony before the Senate Judiciary Committee by the CEO of the Florida Medical Association.

"Thus, the finding by the Legislature and the [Governor’s] Task Force that Florida was in the midst of a bona fide medical malpractice crisis, threatening the access of Floridians to health care, is dubious and questionable at the very best."

The argument that “actual and potential jury awards of noneconomic damages (such as pain and suffering) are a key factor (perhaps the most important factor) behind the unavailability and un-affordability of medical malpractice insurance in Florida” is unsupported.

[T]here are other explanations for the dramatic rise in medical malpractice insurance premiums."

For example … in the opinion of Joanne Doroshow, Executive Director of the Center for Justice and Democracy, “[T]his so-called ‘crisis’ is nothing more than the underwriting cycle of the insurance industry, and driven by the same factors that caused the ‘crises’ in the 1970s and 1980s. According to … Doroshow, with each crisis, there has been a severe drop in the investment income for insurers, which has been compounded by severe under pricing of insurance premiums in the prior years.… Then … when investment income drops … or due to low income resulting from unbearably low premiums, the insurance industry responds by sharply increasing premiums and reducing coverage..…”

According to Tom Baker in his book, The Medical Malpractice Myth, premium hikes are also due to “dramatic increases in the amount of money that the insurance industry put in reserve for claims. Those reserve increases were so big because the insurance industry systematically underrserved in the years leading up to the crisis.”

“[T]he deputy director of the Florida Office of Insurance Regulation testified he had found no evidence to suggest that there had been a large increase in the number of frivolous lawsuits filed in Florida, nor was there any evidence of excessive jury verdicts in the prior three years.”

“[T]he record and available data fail to establish a legitimate relationship between” the cap and lower medical malpractice insurance premiums because insurers do not pass savings onto doctors.

“Robert White, the President of First Professionals Insurance Company (FPIC), testified during a Senate Judiciary Committee meeting that a $500,000 cap on noneconomic damages would achieve ‘virtually nothing’ with regard to stabilizing medical malpractice insurance rates. …”

“[D]uring floor debate in the House of Representatives, one representative expressed concern that if the Florida Legislature implements a cap on noneconomic damages, there is no requirement in the bill that insurers pass any savings onto physicians. … (‘[A]t the end of the day, actually, [the insurance companies] don’t have to pay anything back to the doctors. It’s just a windfall, and there’s no provision in the bill that says otherwise.’).”

“A number of state courts have expressed concern that without a statutory mandate that insurance companies lower their insurance premiums in response to tort reform, the savings resulting from reforms such as damages caps may simply increase insurance company profits.”

Savings from caps have led to huge insurance industry profits, which “the insurance industry should pass … onto Florida physicians in the form of reduced malpractice insurance premiums, and it should no longer be necessary to continue punishing those most seriously injured by medical negligence by limiting their noneconomic recovery to a fixed, arbitrary amount.”

“The most recent records and reports of the Florida Office of Insurance Regulation, and the annual reports of medical malpractice insurers, confirm that not only has the number of insurers providing medical malpractice insurance coverage increased, … the profits would probably shock most concerned.”

“Indeed, between the years of 2003 and 2010, four insurance companies [The Doctors Company, Mag Mutual Insurance Company, ProAssurance Corporation, and First Professionals Insurance Company] that offered medical malpractice insurance in Florida cumulatively reported an increase in their net income of more than 4300 percent….”

[E]ven if there had been a medical malpractice crisis in Florida at the turn of the century, the current data reflects that it has subsided.… At the present time, the cap on noneconomic damages serves no purpose other than to arbitrarily punish the most grievously injured or their surviving family members.”

July 15, 2013

Every year, our nation’s special interests line up before
our state legislatures, with emptied pockets and outstretched hands, and ask
for the opportunity to show their patriotic civic duty. How do they do that? Why, by getting immunity from liability, of
course.

After all, just in case they do something wrong, someday,
why should they have to pay for it anyway?

And we allow this because… well, most of us don’t even know
about it. And even if we did, we sure
don’t have the money or power to stop it.

Such has apparently been the case in the 24 states that have
now enacted “Stand Your Ground” laws. Of course, we are all now acutely aware of how
this law protects aggressors from criminal liability, even when they have a gun and
stalk unarmed innocent teenagers. (Jurors
in the Zimmerman case were stuck with a terrible law not to mention significant law enforcement failures.) But the nation may just be catching onto the
fact that this law also strips away the legal rights of victims and their
families. The National Rifle Association
made sure of that in Florida and NRA “pushers,” the American Legislative Exchange Council (ALEC), have
ensured that every other state law does the same thing. It doesn’t mean a civil case is
impossible. But winning becomes incredibly
difficult and a family who brings a case and loses is forced to pay the other side’s legal fees.
In other words, who’s gonna risk bringing a case like that?

“Technically, there can still be a civil case,” said Tamara
Rice Lave, a professor of criminal law at the University of Miami and a former San
Diego public defender. “However, ‘Stand Your Ground’ is going to preclude
that.”

At the start of his trial, Zimmerman waived the
right to have a judge determine he was immune from prosecution in
the Martin shooting under “Stand Your Ground,” which says people can use deadly
force rather than flee a situation where they feel their lives are in danger.
After his acquittal, Zimmerman can rely on getting that immunity in a civil
case, Lave said.…

Darren Hutchinson, a constitutional law professor at the
University Of Florida, agreed that a civil case could blow up due to “Stand
Your Ground,” but he was less convinced a judge is guaranteed to give Zimmerman
immunity under the law.

“It’s still hard, given a acquittal, to win in a civil
case,” he said. He noted that if Zimmerman doesn’t get immunity under “Stand
Your Ground,” the burden of proof would be much different and give the Martin
family attorneys the chance for a win.

“If they got over the procedural hurdle [of immunity], I
wouldn’t say that it would be impossible,” Hutchinson said. “I still think it’s
difficult, given the lack of evidence we have in the case and the main
eyewitness against him [Martin] being dead.”

Many outside observers look to O.J. Simpson’s civil
conviction following his criminal conviction as a map for how the Martin family
should proceed. Lave said the comparison doesn’t make much sense.

“If you think about the O.J. case … no state had Stand Your
Ground laws then. California doesn’t have it now, so there was nothing that
prevented [the civil case] from happening,” she said. In Florida, the law is
different: “Stand Your Ground” gives Zimmerman legal power to shut down a civil
case before it begins, something Lave said was a virtual certainty.

Zimmerman’s lawyer Mark O'Mara has been clear
about his own views, however:

"On the civil aspect, if someone believes that it's
appropriate to sue George Zimmerman, then we will seek and we will get immunity
in a civil hearing."

With regard to our rights to civil justice, Joni Mitchell perhaps said it best:

December 05, 2012

Whether you’re liberal or conservative, live in a Red State
or a Blue State, are a strict constitutionalist or a judicial activist
(whatever that means these days),
there’s one thing on which everyone should agree – abolishing civil juries and
replacing them with state-run government agencies is a dumb idea.

Take the terrible proposal that’s been circulating in
Georgia and Florida, which is the brainchild of a Richard L. Jackson, the Chairman
and CEO of Jackson Healthcare. He is proposing to repeal the
right to jury trial for all patients injured by medical malpractice in these
states, replacing juries with a new government agency consisting of political
appointees and government bureaucrats pulled directly from the medical and
business establishments. These government officials would be given power to write and approve “compensation schedules” - so much for an eye, so much for
a leg, so much for a dead child - irrespective of any patient's actual needs. How nice for Mr. Jackson.

Mind you, this idea comes just two
years after the Georgia Supreme Court unanimously ruled that a simple
cap on non-economic damages was unconstitutional, saying "the determination of
damages rests 'peculiarly within the province of the jury.'" So along comes this idea, which would
wipe our juries and cap everything.

And besides, who believes a government takeover of the
medical malpractice system is a good idea?

Who believes that instituting a state-imposed rigid,
dictatorial system of compensation schedules and liability standards for
doctors, replacing what is now a free-market approach to holding health care
providers accountable, is a good idea?

Who believes that it makes sense in this fiscal climate to create
an entirely new governmental agency to handle what are a relatively small
percentage of medical malpractice cases in our court system?

Who believes that a system in which catastrophically-harmed
children likely will be compensated at well below their actual losses, forcing
families onto taxpayer-funded Medicaid, is a good idea?

See what I mean? Conservatives should be disturbed by this
idea as much as progressives. Unless you happen to be an industry CEO, I
suppose.

For more on this, check out the Center for Justice &
Democracy’s new study: Georgia’s Patient Compensation System – A New State
Agency That Will Harm Patients.

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